Fox News Confuses The Constitutionality Of Stop And Frisk Enforcement Tactics With The Unconstitutional NYPD Version

Fox News hosts repeatedly attacked a federal court opinion that found that the New York Police Department's (NYPD) version of stop and frisk was unconstitutionally applied by arguing stop and frisk in general is constitutional, a misleading conflation of the NYPD's enforcement tactics and proper stop and frisk procedure.

Fox News Hosts Dismiss Federal Court Decision By Arguing The Supreme Court Held Stop And Frisk Can Be Constitutional

DOOCY: So you got to wonder whether or not, you know, since we do have on a wiretap one of the bad guys, one of the alleged gun smugglers saying, you know what, I'm not going to go into New York City's Brooklyn because of stop and frisk, you got to wonder after that judge threw it out last week, they said, you know what, wide open. Let's go.

KILMEADE: [The judge] changed it, they didn't throw it out, but it is modified, and the Supreme Court has already said it is constitutional so let's hope they get it back to where it belongs. [Fox & Friends, 8/20/13]

Fox News Host Kimberly Guilfoyle: It Is Illegal To Racially Profile But The "Supreme Court Said [Stop And Frisk Is] Legal. It's Not A Violation Of The Constitution." Guilfoyle countered Fox News co-host Bob Beckel's August 19 skepticism that all 4.4 million stop and frisks were legal by asserting "the Supreme Court disagrees with you. It is legal. It is constitutional":

BECKEL: I can tell you that the 4.4 million people who were stopped and frisked the last 10 years, a minuscule number were arrested, a minuscule. And there was nothing about -- very few of them had guns or anything like else like that. So, at 4.4 million and you get a tiny number of people who get arrested. I mean it doesn't -- it's logical. You need to look at it. It is stepping on the Fourth Amendment, 4.4 million and you don't stop any crime.

GUILFOYLE: I'm sorry Bob, it's not stepping on the [Fourth] Amendment because the Supreme Court disagrees with you. It is legal. It is constitutional.

[...]

GUILFOYLE: And also, if you guys are worried about racial profiling and--

BECKEL: I'm not. It's--

GUILFOYLE: Hold on. Bloomberg signed a law in 2004 banning that. There are safeguards in place. The Supreme Court said it's legal. It's not a violation of the Constitution, it works, it's an effective law enforcement tool, and it does operate as a deterrent. [The Five, 8/19/13, via Nexis]

Fox News Host Bill O'Reilly: Scheindlin "Couldn't Stop" The NYPD's Stop And Frisk Because "It's A Legitimate Program Under The Constitution." On August 13, O'Reilly and Fox News Legal Analyst Lis Wiehl argued Scheindlin can't shut down stop and frisk in NYC because "it's not unconstitutional":

[Defense Attorney Jeffrey] LICHTMAN: In 2004, for one percent of all the stops, there was nothing written. No reasonable suspicion was written in the cops' book, their record book. In 2009, it went from one percent to 36 percent. This is the NYPD's fault for simply not following the Fourth Amendment. And Judge Scheindlin did not stop stop and frisk she simply said --

O'REILLY: She couldn't stop the program because the Supreme Court has ruled that it's a legitimate program under the Constitution.

[...]

WIEHL: It doesn't make any sense. If it's truly a violation of the Constitution the way this policy is implemented, if that is true, which is her consensus here, her opinion, then she should shut it down. The whole program. Period. Stop, full stop.

O'REILLY: She can't because the Supreme Court has ruled it...

WIEHL: She can't because of the Supreme Court. She can't because it's not unconstitutional. They have not proven that, the plaintiffs. [The O'Reilly Factor, 8/13/13, via Nexis]

Judge Scheindlin Cannot And Did Not Overrule A Supreme Court Opinion, She Held That The NYPD Is Not Performing Stop And Frisk Properly

Chief Justice Earl Warren: "We Emphatically Reject" The Notion That Stop And Frisk Is "Outside The Purview" Of The Constitution. Writing for the Supreme Court in the 1968 case of Terry v. Ohio, Warren delineated the constitutional limits of stop and frisk, warning "it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a 'petty indignity.'":

[Stop and frisk] is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.

[...]

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment[.] [Terry v. Ohio, 6/10/68]

Federal District Court Judge Shira Scheindlin: "This Case Is Not About" The Constitutionality Of Stop And Frisk In General Or The Efficacy Of The NYPD. Quoting Supreme Court precedent that held some effective gun violence prevention strategies may nevertheless be unconstitutional, Scheindlin observed "[m]any police practices may be useful for fighting crime -- preventive detention or coerced confessions, for example -- but because they are unconstitutional they cannot be used, no matter how effective. 'The enshrinement of constitutional rights necessarily takes certain policy choices off the table'":

Plaintiffs -- blacks and Hispanics who were stopped -- argue that the NYPD's use of stop and frisk violated their constitutional rights in two ways: (1) they were stopped without a legal basis in violation of the Fourth Amendment, and (2) they were targeted for stops because of their race in violation of the Fourteenth Amendment. Plaintiffs do not seek to end the use of stop and frisk. Rather, they argue that it must be reformed to comply with constitutional limits.

[...]

I find that the City is liable for violating plaintiffs' Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD's practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD's unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause.

[...]

I also conclude that the City's highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting "the right people" is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason -- in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional. [Floyd v. The City Of New York, 8/12/13]

Chicago Police Superintendent Garry McCarthy: Stop And Frisk Correctly Practiced Was Not At Issue In Scheindlin's Opinion, Rather The NYPD Version May Have "Come Off The Rails." As reported by WBEZ, in the wake of the recent decision McCarthy explained that "there's a lot of confusion over exactly what stop and frisk is" and explained that the tactic is not only common, it is implemented in Chicago:

Chicago Police Superintendent Garry McCarthy says a ruling on New York City's stop and frisk policy will not affect the way police operate in Chicago.

For starters, McCarthy says there's a lot of confusion over exactly what stop and frisk is. He says it's not a New York City police department program.

"Stop and frisk is a tactic that every department in the country uses because we have to stop people when we're going to arrest them. We have to frisk them if we're in fear of a weapon being present, which endangers our safety," McCarthy said at a press conference Tuesday afternoon at police headquarters. "I'm not sure what happened in New York where it came off the rails if it did come off the rails or if it's something that's being misinterpreted."

On Monday federal U.S. District Judge Shira Scheindlin ruled New York City's stop and frisk policy was unconstitutional. The judge found that police often lacked reasonable suspicion to stop people and she found the policy was racially discriminatory. Scheindlin is not putting an end to the practice but is requiring reforms.

McCarthy says Chicago officers stop the right people at the right places for the right reasons and operate within the bounds of the constitution. McCarthy says all of Chicago's stop and frisks are documented. [WBEZ, 8/13/13]

Fox News Host Eric Bolling: "I Called [Scheindlin] An Activist Judge Last Week And I Apologize." Correcting his Fox News co-hosts Dana Perino and Guilfoyle, Bolling apologized for his previous criticism of Scheindlin's holding and pointed out the judge didn't hold that stop and frisk should "go away, she simply said you really have to train police officers prior to the stop-and-frisk":

PERINO: Have a nice experiment right here in New York City, enjoy yourselves when crime goes way up.

GUILFOYLE: Dana is pointing out the hypocrisy of it and the inconsistency intellectually of that kind of argument from the judge. At one hand, she's like, "Oh no, stop-and-frisk, boo that's bad" then next she's like "Oh, more cameras, more cameras."

BOLLING: No, no, no. She didn't say that. You guys, let's be honest. She said stop and frisk shouldn't go away, she simply said you really have to train police officers prior to the stop and frisk, and then check...

GUILFOYLE: She's a civil rights activist, Bolling.

BECKEL: Well, so what?

GUILFOYLE: Just FYI. That's her piece. That's her deal.

BOLLING: Listen, I called her an activist judge last week and I apologize because I think she's in line with the Constitution...

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Sergio Munoz is the Deputy Research Director. Prior to joining Media Matters, he worked on progressive law and policy for the American Civil Liberties Union, the Federal Rights Project, and NCLR. He is a graduate of Brown University and the University of Michigan Law School.

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